In this article an eminent white collar crime and investigations partner at the British law firm of BLM, formerly Berrymans Lace Mawer, answers our questions about the first case in which an unexplained wealth order was served on a HNW individual.

Q: What is the significance of this first UWO case? What was Zamira Hajieva's argument against it?

A: The National Crime Agency will be emboldened with this decision given that it is the second unsuccessful challenge it has faced from Mrs Hajiyeva to the UK’s first Unexplained Wealth Order. Professionals were keen to read how the Court of Appeal would consider the arguments for and against the Unexplained Wealth Order would be handled by the appeal judges. In this instance, the Court of Appeal dismissed all the arguments that had been raised by Mrs Hajiyeva’s team.

One such argument was that the National Crime Agency (and therefore the court) could not use her husband's conviction in Azerbaijan as a basis for the order, the reason being that Mr Hajiev did not receive a fair trial – his lawyers not being able to cross-examine witnesses or to place their own evidence before the Azeri court. Mrs Hajiyeva made a similar argument - successfully - at her extradition hearing recently. Her legal team piggy-backed on that, but it didn't wash with the Court of Appeal. In addition, the use by Mrs Hajiyeva of a fund manager to explain her wealth at the Court of Appeal appeared to raise more questions about the money than it answered.

The question that the Court of Appeal raised, to which it did not receive an answer, was this: if Mrs Hajiyeva’s husband did not embezzle money, as alleged by the Azeri authorities, and if, at the very most, he was only in receipt of a salary of £70,000, where did her money come from? How did she still have £16 million to spend at Harrod's, without any discernible money of her own?

Q: What are the next steps that Zamira must now take, and what consequences could she face?

A: As of the date of the judgment, Mrs Hajiyeva had 7 days to comply with the National Crime Agency’s original order by providing it with details about the properties that are subject to that order (i.e. how they were bought). Failure to do so results in the properties being recoverable.

Q: Is the word 'recovery' used because of the idea that a money launderer is committing some kind of civil offence against the state and therefore the state can 'recover' damages?

A: In part. The word ‘recoverable’ is defined in the Proceeds of Crime Act as applying to any property that is obtained through unlawful conduct.

Q: Can you tell us a little more about the part of the order that asks for information?

A: It says 'we give you x number of days to tell us about the properties' in accordance with the recent powers drafted in under the Criminal Finances Act 2017. These new powers have shifted the burden squarely on the respondent (i.e. the person who is subject of the order) by requesting that they provide information to the police about the provenance of their assets. So rather than be reactive to concerns/questions that would have been raised by the police under the previous POCA regime, a respondent must now assist an investigator (if he or she chooses to) in his enquiries.